This Term Paper has been submitted by

Shantanu Awasthi

217047

On Family Law-I

Topic: “Danial Latifi v. Union of India &

Others”

During the Winter Semester 2017-18.

1
 Table of Contents
1. Introduction………………………………………………………………………...3

2. Danial Latifi case: Objective & Roadmap…………………………………..……..4

3. Muslim law on maintenance……………………………………………………….5

4. Criminal Law on Maintenance…………………………………………………….6

5. Shah Bano case analysis…………………………………………………………...7

6. Muslim Women (Protection of rights on divorce) Act………………………….....8

7. Arguments by appellant…………………………………………………………....10

8. Arguments by respondents………………………………………………………..11

9. Supreme Court’s verdict………………………………………………………….12

10. Contemporary relevance of Danial Latifi case…………………………………...12

11. Conclusion: Critiquing the Supreme Court’s approach………………………….13

12. Bibliography……………………………………………………………………...15

2
 Introduction.

We live in the 21st century, in a parliamentary democracy, and with fundamental rights that
are strong enough to ensure an egalitarian society. But in reality are we, as a nation, even
close to being egalitarian? Well, the Supreme Court of India answers this question in
negative. According to the Supreme Court, equality between genders exists only on paper and
in India, in all religious setups i.e. both majority and minority, “there exists a great disparity
in the matter of economic resourcefulness between a man and a woman. Our society is male
dominated both economically and socially and women are assigned, invariably, a dependent
role, irrespective of the class of society to which she belongs.” 1 When the apex court of the
nation believes that women and men in the nation are at an unequal footing, the gravity of the
statement becomes even more intense because, when the Supreme Court made this remark,
the 5 judge constitutional bench believed that apart from the social inequality that prevails,
even the equality by law hasn’t been ensured on ground. In such a setup, where women are
not economically at par with men, marriages and related rituals and practices become
inherently problematic. In most cases, women who get married are neither very well
educated, nor financially independent due to which they completely depend on their husband
and his family, even in cases where women are highly educated, they give up their avocations
and devote her life to the welfare of her husband and his family. A wife shares with her
husband her body, mind, emotions and sentiments and her investment in marriage is her
entire life i.e. a sacramental sacrifice of her inner self which is too vast to be quantified. In
such a situation, when a divorce happens, the law can do very little to compensate her for the
emotional loss and suffering that she undergoes, it is a meagre consolation to say that
monetary compensation should be provided to such a woman so as to ensure that she can live
the rest of her life with dignity. 2 Thus the Indian law (both personal and secular) takes this
small step to ensure gender justice and basic human rights to divorced women. But in case of
Indian Muslim women, this battle hasn’t been easy, because of the inconsonance between
certain provisions of Muslim personal law and the Section.488 of the Cr.P.C (Before the
1973 Amendment) i.e. currently the Section.125 of the Criminal Procedure Code, 1973. The
Indian courts since decades were not exactly clear as to what the true rule of law is regarding
the Muslim women’s right to maintenance after divorce, due to which there was a series of

1
Danial Latifi v. Union of India & Ors. (2001) 7 SCC 740.
2
Ibid.

3
contradicting judgments, but finally because of two Supreme Court judgments and one
legislation by the parliament, which I have discussed in detail in this paper, the position of
law is finally well settled since 2001, which is that a Muslim husband is under the obligation
to maintain the divorced wife under the shariat, Code of Criminal Procedure 1973 and
Muslim Women (Protection of Rights on Divorce) Act 1986.3

Danial Latifi v. Union of India: Objective and

Roadmap.
In this term paper I have provided a detailed analysis of the judgment of Danial Latifi v.
Union of India, i.e. the facts leading to, contentions put forward and the ratio of the case
which has now become the settled Indian law regarding the Muslim women’s right to
maintenance after divorce. I have also explained, with the help of recent Supreme Court
cases, how the rule propounded in the case is being used in the contemporary Muslim
women’s right to maintenance dispute. But before doing any of this, I have explained the
factors that led to the passing of this judgment i.e. Muslim personal law provisions, statutory
provisions and Supreme Court cases related to the Muslim women’s right to claim
maintenance post-divorce, before the Danial Latifi judgment.

The main issue before the court in the Danial Latifi case was that under section 127(3)
of the Cr.P.C, 1973 where the husband has paid the mahr amount to the wife, will it
indemnify the husband from his obligations under section 125, Cr.P.C? The Supreme Court
played safe and tried to give a judgment which would not offend either the women’s rights
activists and the aggrieved women or the Muslim theologians who believed in the supremacy
of the Mohammedan law. To be precise, in this case Supreme Court upheld the constitutional
validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and
simultaneously granted legitimacy to the Muslim women’s right to maintenance after divorce
exceeding beyond the iddat period. There were several critics of this judgment who believe
that though the Supreme Court reached a correct and progressive conclusion at the end of the
judgment but the reasoning provided by the apex court for pronouncing that judgment was
not something which can be appreciated. But before coming to the critique of the judgment, I
3
KUSUM, FAMILY LAW LECTURES: FAMILY LAW-I 245-246 (2007).

4
have in this paper first clarified each and every aspect of law that the Supreme Court took
into consideration while deciding this case. Therefore before coming to the ratio of the case I
have explained the position of Muslim personal law on this issue when the case came up to
the court, then I have clarified the position of criminal law in this regard and the amendment
that was done in the Cr.P.C which is very crucial to this judgment, subsequently I have
provided details about the Shah Bano judgment which is very much related to this case, after
this you will read about the legislation which the then government of India had enacted to
nullify the effect of the Shah Bano judgment i.e. the Muslim Women (Protection of Rights on
Divorce) Act, 1986 and finally I have given the exhaustive details of the Danial Latifi
judgment and then critiqued it.

Maintenance after divorce under Muslim

Personal Law.
The Muslim personal law has the provision for two different payments to a Muslim woman
on her divorce, the first one being the amount of mahr i.e. the exact amount of dower agreed
by the parties at the time of the nikah.4 Secondly, a reasonable fair amount of maintenance is
also to be paid by the husband, but the Muslim personal law is clear on the point that after
divorce, the wife is entitled to maintenance from her husband only during the period of
Iddat.5 The Iddat period is usually 3 continuous menstrual cycles of the woman, or if the
women is pregnant, the Iddat period continues till the delivery of the child.

Maintenance under the Code of Criminal

Procedure.
4
KUSUM, FAMILY LAW LECTURES: FAMILY LAW-I 245 (2007).
5
MULLA, PRINCIPLES OF MOHOMEDAN LAW 271 (1972); THE HEDAYA 145.

5
The Code of Criminal Procedure, 1898 gave a right to the women of all religions to file an
application to the magistrate, seeking maintenance from their husband. This right was
beneficial to women of other religions to a large extent, but when it came to Muslim women,
this act became detrimental to them. This Cr.P.C provided that the right of maintenance from
the date of filing the application is sustainable only if the husband submits to it. 6 In case of
Muslims this right was not properly used because the husbands used to defeat this right by
stating in a written statement that he has already divorced his wife and limit his obligation to
pay to the Iddat period only, and since this provision doesn’t include ‘divorced wives’
therefore it was so of no help, in short this provision which was intended to be a boon, turned
into a bane for Muslim women, because the Muslim women used to go to the court to get
maintenance under S.488, Cr.P.C but returned with a divorce and an inadequate maintenance
for a limited time period.7 Even if the husbands weren’t able to prove the divorce but it was
held to operate as a declaration of divorce from the date of the written statement and the wife
was entitled only to a maintenance for a period of ‘Iddat’ from that date.8

To fill this problematic loophole in the maintenance provisions, a revolutionary

change was brought about i.e. the Criminal Procedure Amendment Act, 1973. In the new act,
the Section.488 has been remodeled and the new provision of S.125 has been introduced.
This new act clearly provided that for the purpose of this act, ‘wife’ includes divorced women
who haven’t remarried.9 The rationale of the parliament behind this enactment was to save
the divorced women from vagrancy and destitution, 10 therefore the courts accepted the
provision with broad approach and even extended it to Muslim women who themselves
obtained decree for dissolution of marriage under the Dissolution of Muslim Marriages
Act,1939.11 One controversy which arose was because of the provision in the act which
mentioned that if the divorced wife has received the amount due to her under the personal
laws, then the magistrate can cancel any maintenance order in her favor under S.125. 12
Several High Courts gave contradicting judgments on the point whether the ‘sum’ mentioned
in S 127(3) (b) included the mahr amount and the maintenance paid during the Iddat period
or not, and based on this whether the Muslim woman will be allowed maintenance post Iddat

6
S.488, Code of Criminal Procedure, 1898.
7
S. KRISHNAMURTHI AIYAR, LAW OF MARRIAGE MAINTENANCE SEPARATION AND DIVORCE 370-371 (4 TH ed., 2010).
8
Chand Bi v. Bandesha AIR 1961 Bom 121.
9
Section 125(1), Code of Criminal Procedure, 1973.
10
Hajuben v. Ibrahim (1977) Guj LR 133.
11
Zohra Khatoon v. Mohd Ibrahim, AIR 1981 SC 1243.
12
Section 127(3)(b), Code of Criminal Procedure, 1973.

6
or not, eg. In Hamid Khan v. Jamni Bai13 maintenance post Iddat was not allowed, while in
Kunhi Moyin v. Pathummai it was allowed14. Position was clarified only in the Shah Bano
case.

The Shah Bano Case.

Briefly stating the facts of the case, Ahmad Khan was married to Bano Begum since 1932
and the couple had five children, the wife was driven out of the house in the year 1975, 3
years after which i.e. in 1978 she filed an application for maintenance. 15 As soon as she did
this, her husband divorced her by an irrevocable talaq. The judicial magistrate at Indore and
Madhya Pradesh High Court ordered the husband to pay a small sum of money i.e. Rs.25 per
month and Rs.179.20 respectively.16 The husband appealed to the Supreme Court, but
unfortunately for him, the Supreme Court upheld Shah Bano’s right to maintenance even
beyond the Iddat period. Justice Chandrachud held that the Muslim religious texts impose a
duty on the husband to make provision or provide for a fair maintenance to the divorced
wife,17 and a contrary interpretation of these verses will to a great injustice to the essence of
quran.18 The Supreme Court found a middle way and held that the true position of law in this
issue is as follows:

a. If the divorced wife is able to maintain herself, the obligation of the husband to
provide for the maintenance ceases with the expiration of the iddat period.
b. If the divorced wife is not able to maintain herself, she is entitled to maintenance
under Section 125, Cr.P.C.
c. S.127(3)(b) doesn’t include the mahr amount since mahr was not a consideration for
divorce, it is only a mark of respect from the husband to the wife, and thus mahr can’t
ipso facto absolve the husband of his liability under S.125 Cr.P.C.19

13
(1978) ILR MP 595.
14
(1976) Ker LT 87.
15
Mohd Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945.
16
Ibid.
17
The Holy Quran, Chapter II, Suras 241-242.
18
Supra 15.
19
Ibid.

7
 Muslim Women (Protection of Rights on
Divorce) Act, 1986.
The Shah Bano judgment sparked a pan India controversy since the Muslim
theologians claimed that this judgment of the Supreme Court interfered with the shariat since
the shariat contains no provision for maintenance to a divorced woman after the expiration of
the iddat period. The controversy soon reached the parliament and the Rajiv Gandhi
government came up with the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The act provided for a reasonable and fair provision and maintenance which is limited to the
period of iddat.20 Also, the woman is not allowed to claim maintenance under the Cr.P.C,
unless both the parties exercise their option to be governed under the Cr.P.C. 21 Also if the
women was not able to maintain herself, on obligation was put on her relatives and
alternatively on the state Wakf board to maintain her. 22 The act again sparked a controversy
since several activists claimed this act to be violative of the right to equality, and on the same
ground the lawyers in the Shah Bano case filed a writ petition on the Supreme Court, to check
the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act,
1986, and this case is the famous Danial Latifi case.

Arguments by the Appellant in Danial

Latifi Case.
1. The first argument by the appellants was that S.125 of the Cr.P.C was enshrined so as
to prevent a situation where the divorced wife would be led to a state of destitution or
vagrancy thus it ensures that the fundamental right to life of the wife under article 21
is exercised. Since this act denies the divorced Muslim women their right to live with
dignity, it is violative of Article 21 and therefore is unconstitutional.23
2. The argument put forward by the National Commission for women was that Cr.P.C is
a part of criminal law and not personal law, therefore the rights arising under S.125,
20
S.3(1)(a), Muslim Women (Protection of Rights on Divorce) Act, 1986.
21
S.5, Muslim Women (Protection of Rights on Divorce) Act, 1986.
22
S.4, Muslim Women (Protection of Rights on Divorce) Act, 1986.
23
Olga Telis v. Bombay Municipal Corporation, 1985 (3) SCC 545.

8
 Cr.P.C are available to women of all religion. But because of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 the rights to Muslim women was denied,
i.e. rights to those women were not granted just because they were Muslim, and that is
directly against the Articles 14&15 thus is unconstitutional on the grounds of being
violative of right to equality.
3. The Islamic law has the provision for ‘mata’ i.e. maintenance which extends beyond
the iddat period, but this act denies this right available under personal law to Muslim
women, by limiting the period of claiming maintenance to iddat

On these ground theses grounds the appellant side challenged the validity of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 on the grounds of being
unconstitutional as well as unislamic.

Arguments by Respondents in Danial Latifi

Case.
The solicitor general of India, appearing in the Supreme Court on behalf of the Indian
government put forward the following contentions to prove that the Muslim Women
(Protection of Rights on Divorce) Act, 1986 is constitutional and protects Muslim women’s
rights:

a. The alleged ‘discrimination’ was not a discrimination, rather it was a distinction, and
since this distinction was based on personal laws, which is a valid ground for
distinction therefore the legislation if well within the constitutional boundaries.
b. The contention from the side of All India Muslim Personal Law Board (AIMPLB)
was that the Supreme Court, in the Shah Bano case, had misinterpreted the word
mata. The theologians believe that mata signified a one-time payment and was
obligatory only in those cases where marriage had not been consummated and the
mahr amount had not been stipulated.24

24
Supra 1.

9
 Supreme Court’s verdict in Danial Latifi
Case.
A 5 judge Supreme Court bench comprising of Justices G.B Patnaik, S. Rajendra Babu, D.P.
Mohapatra, Doraiswamy Raju and Shivaraj V. Patil gave a unanimous judgment which is
currently the settled law in India regarding the Muslim women’s right to maintenance after
divorce. The Supreme Court made the following observations:

a. There exists a great economic and social disparity between men and women due to
which divorce for a woman becomes much more detrimental than to men, therefore
every personal law makes an effort to make the husband provide some compensation
to his former wife, and the Islamic law is no exception in this regard. Thus the burden
to provide maintenance can’t be shifted to the relatives or the state wakf board, as
suggested by the act.
b. The court has gone through the relevant portion of the Holy Quran, and has come to
the conclusion that the religious law enshrined in the Quran is not open to
interpretation for the court, thus the court will respectfully accept it and the court held
that the Muslim Women (Protection of Rights on Divorce) Act actually codified what
was stated in the Shah Bano case.
c. The provisions of the Act prima facie appear to be violative of the Right to equality,
but it is a settled judicial practice that when a particular construction of a given statute
appears to be unconstitutional or ultra-vires, whereas another construction appears to
be constitutional and permissible, the court will adopt the latter interpretation on the
ground that Legislature does not intend to enact unconstitutional laws. Therefore the
court didn’t declare the act unconstitutional, rather made the following conclusive points:
1. It is mandatory for the Muslim husband to make a just provision for the
maintenance of his divorced wife in future, which obviously includes her
maintenance as well. Such a reasonable and fair provision extending beyond the
iddat period must be made by the husband within the iddat period as per the
Section 3(1)(a) of the Act.
2. Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of
the Act to pay maintenance is not confined to iddat period.

10
 3. A divorced Muslim woman who has not remarried and who is not able to maintain
herself after iddat period can proceed as provided under Section 4 of the Act
against her relatives who are liable to maintain her in proportion to the properties
which they inherit on her death according to Muslim law from such divorced
woman including her children and parents. If any of the relatives being unable to
pay maintenance, the Magistrate may direct the State Wakf Board established
under the Act to pay such maintenance.
4. The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution
of India.

Relevance of Danial Latifi case in

Contemporary suits.
The Danial Latifi case did bring about a substantial change in the remedy awarded to Muslim
women in maintenance suits. I have briefly explained two of such recent cases.

a. Shamima Farooqui v. Shahid Khan25- In this case a Muslim wife who married a
husband claimed maintenance. The husband using the good old tactic claimed that he
had divorced the wife back in 1997 and thus his obligation came to an end after the
iddat period long back. The Supreme Court acknowledging Danial Latifi v. Union of
India as the settled law awarded maintenance to the wife. The SC further clarified the
position of law and held that the high court judgment of reducing the maintenance
amount to ₹2500 from ₹4000 was wrong since it was an inadequate amount. The
settled position of law according to this case is that the amount was maintenance after
the iddat period should be a reasonably adequate amount and that the court feels to be
such looking at the economic status of the wife.

b. Khatoon Nisa v. State of Uttar Pradesh26- Relying on the Danial Latifi case, the
Supreme Court had held that a magistrate can’t be stopped from making orders of
25
AIR 2015 SC 2025.
26
JT 2002 (7) SC 631.

11
 maintenance under S.125 of the Cr.P.C even if the parties have not invoked the
Section 5 of the Muslim Women (Protection of Rights on Divorce Act), 1986.

Conclusion: Critiquing the approach

taken by the Supreme Court.
The Danial Latifi Judgment is a celebrated judgment, famous for taking the nation a step
forward in terms of gender equality. But no matter how much the people from the non-legal
field may appreciate this so called ‘judicial activism’, I as a student of law personally feel
that the appreciation or criticism of any judicial decision should be made, not on the basis of
the final application of it, but on the basis of the reasoning and the rationale on the basis of
which the court gives the verdict. According to the Supreme Court their rationale behind
upholding the constitutional validity of the Muslim Women (Protection of Rights on Divorce)
Act.,1986 as well as acknowledging the Divorced Muslim Women’s right to maintenance
after the iddat period was that when there are more than one interpretations of a statute
possible, the court will consider the interpretation which is in conformity with the law of the
land because of the assumption that the legislature never intends to pass laws which are
unconstitutional. I, respectfully choose to disagree with the reasoning provided by the
Honorable Supreme Court in this regard, because several past judgments of Supreme Court
show that legislature has often transgressed the boundaries of constitutional validity and have
been rightfully struck down by the court. The recent case of Shreya Singhal v. Union of
India27 is an example of how the apex court of country does and should exercise its judicial
activism, to not just prevent people from the application of laws that are against the
constitutional essence, but also set a precedent before the judiciary and the parliament by
striking down these laws by explicitly stating it to be unconstitutional that a law which is
made without properly checking its constitutionality will not survive the acid test of the
constitution and while doing so the court must vehemently criticize the parliament’s action so
as to make legislators more accountable of their actions. Now, the very reason I argue that the
court should have struck down this act as unconstitutional is because of the inherently
discriminatory provisions contained in it. Firstly, the Cr.P.C gives a right to women of all

27
(2015) 5 SCC 1.

12
religion to claim maintenance from their former husband, without any time constraint, but in
case of Muslim women this right was given only within a limited time period i.e. iddat, 28
which is as good as denying them the right; Secondly, the act specifically mentioned that the
right available under the S.125 Cr.P.C will be available to women marrying under the Special
Marriage Act or, 1954 or taking divorce under the Indian Divorce Act, 1969, but not to
Muslim Women marrying under the Muslim personal law, 29 to put it otherwise this law gives
a right to women of all other religion but not to the women who ‘choose to follow islam’ and
therefore the act is clearly violative of the articles 14 and 15. The Supreme Court itself in the
judgment made an observation that the act prima facie appears to be violative of article 14,
but then never mentioned that how did they assume that ‘legislature didn’t pass an
unconstitutional law’ when the law very clearly violates the right to equality. Therefore on
this note I would like to conclude my project by acknowledging the fact that Muslim women
were granted their legitimate rights by this judgment, but I express my concern about the
approach of the Supreme Court and hope that in future the Supreme Court refrains from
taking such a patronizing approach and clearly point out the flaws in a legislation.

Bibliography
Table of Cases:

1. Danial Latifi v. Union of India & Ors. 2001 7 SCC 740.

2. Chand Bi v. Bandesha AIR 1961 Bom 121.

3. Hajuben v. Ibrahim (1977) Guj LR 133.

4. Zohra Khatoon v. Mohd Ibrahim AIR 1981 SC 1243.

5. Hamid Khan v. Jamni Bai (1978) ILR MP 595.

6. Kunhi Moyin v. Pathummai (1976) Ker LT 87.

7. Mohd Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945.

28
Section 3(1), Muslim Women’s (Protection of Rights on Divorce Act), 1986.
29
Vivek V. Vidwas, “Maintenance to Divorced Muslim Women under 1986 Act; Law needs an Amendment”,
AIR 2006, Journal Section, Pg. 49.

13
 8. Olga Telis v. Bombay Municipal Corporation 1985 (3) SCC 545.

9. Shamima Farooqui v. Shahid Khan AIR 2015 SC 2025.

10. Khatoon Nisa v. State of Uttar Pradesh JT 2002 (7) SC 631.

11. Shreya Singhal v. Union of India (2015) 5 SCC 1.

Books Referred:

1. MULLA, PRINCIPLES OF MOHOMEDAN LAW (1972).

2. KUSUM, FAMILY LAW LECTURES: FAMILY LAW-I (2007).

3. S. KRISHNAMURTHI AIYAR, LAW OF MARRIAGE MAINTENANCE SEPARATION AND

DIVORCE (4TH ed., 2010).

Statues Referred:

1. Code of Criminal Procedure, 1898.

2. Criminal Procedure Amendment Act, 1973.

3. Code of Criminal Procedure, 1973.

4. Muslim Women (Protection of Rights on Divorce) Act, 1986.

Articles Referred:

1. Vivek V. Vidwas, “Maintenance to Divorced Muslim Women under 1986 Act; Law

needs an Amendment”, AIR 2006, Journal Section, Pg. 49.

Online Resources:

1. SCC Online.

2. Westlaw.

3. Lexis Nexis.

14
4. Manupatra.

15